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CAVC Oral Argument: Sellers v. Wilkie, 16-3992 (May 1, 2018)

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General Overview of the Law related to Informal Claims (specifically, "Reasonably Encompassed Claims")

A discussion with the role of intent in determing the scope of a VA claim starts with a mention of formal verse informal claims.  The law governing VA claims has always allowed for veterans to file claims formally, or informally. Different regulatory provisions address these requirements throughout time. 

The distinction is often one that, in my opinion, has only hyper-technical consequences: regardless whether a claim is filed formally, or informally, its elements remain the same.

The Court has long held that the essential requirements of any claim, whether formal or informal, include:

(1) an intent to apply for benefits,

(2) an identification of the benefits sought, and

(3) a communication in writing." Brokowski v. Shinseki, 23 Vet.App. 79 (2009).

In determining whether a formal, or informal, claim for Condition X reasonably encompassed a claim for Condition Y, the  Secretary has a duty to sympathetically read a pro-se veteran’s filings to determine whether a claim for benefits has been raised. See, Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004).

The VA is required to read and construe all communications from a pro se veteran in a sympathetic manner and grant all possible benefits. See, Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004). 

In determining whether a claim - formal or informal - reasonably encompassed a particular condition, 2 elements that are critical are "intent" and "scope". 

Author's note: the issue of intent is a question largely unanswered at the Court. The Secretary always tends to argue that specific intent for a specific benefit for a specific condition is necessary; I won't address the fundamental flaws in that position.  Appellants tend to argue that the "sympathetic reading" standard should apply to the intent element, but that the intent is generally thought to be an intent to claim benefits generally, not benefits for a specific functional impairment. This flashpoint was where I thought the Court was headed in its Statement of Issues for Oral Argument. I'm not so sure anymore.

That said, a veteran’s intent in filing a claim is critical to construing the scope of a VA claim, because “[i]t is the pro se claimant who knows what symptoms he is experiencing that are causing him disability.” Clemons v. Shinseki, 23 Vet. App. 1  (2009).

As to the scope of a claim, the words written - or not written - on a claim form are probative of the scope of a VA claim, the nature of the affliction experienced by a claimant is of greater significance to the scope of a claim; a claimant “sufficiently files a claim for benefits ‘by referring to a body part or system that is disabled or by describing symptoms of the disability.’ ” DeLisio v. Shinseki, 25 Vet. App. 45 (2011).

In determining whether an open claim reasonably encompassed the condition that caused a specifically claimed condition, the court explained that the scope of a VA claim for benefits which identifies a specific diagnosis “is not limited necessarily to benefits for that diagnosis.” DeLisio v. Shinseki, 25 Vet. App. 45 (2011). 

Even where a veteran specifically identified “PTSD without more” in his claim the veteran filed a claim “for the affliction his mental condition, whatever that is, causes him.” Clemons v. Shinseki, 23 Vet. App. 1 (2009). 

In determining whether a disability “reasonably encompasses” another condition, theBVA must consider “the conditions stated and the causes averred to determine whether a claim is reasonably raised”. Ingram v. Nicholson, 21 Vet. App. 232 (2007).  

Th BVA must investigate reasonably apparent and potential causes of a claimed condition and theories of service connection reasonably raised by the record or a sympathetic reading of the claim. Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000). 

A sympathetic assessment of the scope of a VA claim is based on “the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim,” including information gathered by the VA in its investigation. Clemons, 23 Vet. App. at 5.

To be sure, this “sympathetic assessment” of the scope of a VA claim has limits.

On one end of the spectrum, theBVA does not have to go on an “unguided safari through the record to identify all conditions for which the veteran may possibly be able to assert entitlement to a claim for disability compensation.” Brokowski, 23 Vet. App. at 89 (2009).

On the other end of the spectrum, the veteran is not required to file explicit claims for specific diseases or diagnoses, since that would be “overly technical and generally incompatible with the ‘veteran-friendly,’ nonadversarial, administrative claims system.” DeLisio v. Shinseki, 25 Vet. App. 45, 55 (2011)l.

Between these two ends of the spectrum lies the critical work of the BVA in deciding material issues of fact such as the effective date for a particular grant of service connection: it provides adequate reasons and bases by “analyz[ing] the credibility and probative value of the evidence, account[ing] for the evidence that it finds persuasive or unpersuasive, and provid[ing] the reasons for its rejection of any material evidence favorable to the claimant.” See, Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)(table).

This law is further confused by the fact that in March 2015, the VA required veterans use a form to informally claim benefits. So, in my opinion, there must necessarily be a different analysis for post-2015 claims where the required informal claim form was filed, and pre-2015 claims where no form existed.

The law firm of Attig | Steel has argued and won 2 cases in the last year that deal with the issue of "reasonably encompassed claims". The first is Dix v. Wilkie, 16-3748. The second is Payao v. Wilkie, CAVC #16-3537.

We are currently appealing, at the U.S. Court of Appeals for the Federal Circuit, one of the very issues I thought the Court would get into in this case: whether specific or general intent is sufficient in determining whether or not a prior claim for benefits reasonably encompassed a condition that remained open and pending until a later grant of those benefits.

If the BVA denies your appeal seeking an earlier effective date, and you believe that an earlier claim for benefits that reasonably encompassed a recent grant of service connection was not adjudicated by the VA, please contact the law firm of Attig | Steel and we will review your BVA decision to see if you have BVA error that is appealable to the CAVC.

Facts of the BVA Decision relevant to the appeal.

In March 1996, the veteran filed his application for VA disability benefits, stating he was requesting service connection for disabilities that occurred during service, including: right leg numbness and tingling, hearing loss, left knee injury, back injury from parachute jump, and right middle and index finger injury.

A few months later, the VA granted service connection for a variety of conditions related to those claims.

In 2009, the veteran sought treatment for a mental health condition and in September 2009 filed an "informal claim" for post traumatic stress disorder (PTSD). The VA awarded the veteran a 70% rating for major depressive disorder with the September 2009 effective date.

The BVA found the September 2009 claim was the earliest claim for benefits for the mental health condition and there was no earlier expression of intent to seek benefits for a mental health condition.

Veteran's Argument.

The veteran's argument is fairly straightforward.

In his March 1996 claim, he stated he was “request[ing] s/c [service connection] for disabilities occurring during active duty service[.]”

During his  active military service, the veteran was  diagnosed with and frequently treated for a chronic mental disability.

Therefore, because his 1996 claim broadly sought benefits for service connected benefits, and because there was evidence in the record of the veterans in-service mental health condition, the VA should have reasonably construed his claim to include the mental health condition. Accordingly, the veteran's 1996 claim for service connection of his mental health condition has been open and pending since March 1996, and should therefore serve as the effective date for his 2009 grant of service connection for major depressive disorder.

It is this paradigm for which the Court uses the Reese's Peanut Butter Cup metaphor: does blending chocolate (claim form) with peanut butter (service records showing treatment of a condition in service) really make an informal claim?

I think I got that right - food metaphors, particularly those involving sugared goods, make me hungry and distract me. 

Secretary's argument.

The Secretary's argument is equally straightforward:

The veteran's 1996 claim did not demonstrate an intent to seek compensation for a mental health condition. 

The Secretary focuses on the intent element of the claim: their argument is that the Brokowski case, cited above, requires the vet show specific intent to seek specific compensation for a specific condition. 

Court's Statement of the Issue

 (1) Whether a general statement of intent to seek benefits for all service-connected disabilities is sufficient under Brokowski v. Shinseki, 23 Vet.App. 79 (2009), to constitute an informal claim; and

(2) If it is, whether the statement of intent must be accompanied by the submission of pertinent medical records or may the informal claim be made without the submission of records when the records are already in VA's possession or soon will be. 

NOTE REGARDING ARGUMENT:

You are going to  hear extensive discussion in these arguments about how the Appellant's counsel framed  the issue in the briefs compared to how the Appellant's counsel (a different attorney) framed the issues at oral argument.

I am going to refrain from any commentary on  this point until I have had a chance to more fully understand the Court's concerns if they are discussed in the Court's opinion.

For now, all I will say is this: one of the "First Principles" of my law firm is that we work the cases we are capable of working.  I believe that framing of issues, briefing issues and orally arguing issues within a consistent theme or framework are the  essential job of an appellate attorney. These skills take years to practice, hone, refine and employ in an appeal.

Please consider hiring an appellate attorney to handle the entirety of your appeal of an adverse BVA decisions to the CAVC.

You put yourself at a disadvantage if your arguments do not fit a consistent, and narrow, theme throughout the brief and argument.  

 

 

Panel for the Court of Appeals for Veterans Claims:

Chief Judge Robert N. Davis (link to bio on Court webpage)

Judge Mary J. Schoelen (link to bio on Court webpage)

Judge Michael P. Allen (link to bio on Court webpage)

 

Appellant's Counsel:

John F. Cameron, Attorney on the Briefs

Kenneth Carpenter, Attorney at Oral Argument [Law Firm: Carpenter Chartered]

 

VA Office of General Counsel Attorney:

Nathan P. Kirschner, Attorney on the Briefs and at Argument

 

Links to the Parties Briefs

Appellant's Opening Brief

Appellee's Response Brief

Appellant's Reply Brief

Court's Statement of the Issues

 

BVA Decision (April 29, 2016)

BVA Hearing Officer: Michael Lane

VA Regional Office: Montgomery, Alabama

 

 

 

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